Citation Nr: 0817381
Decision Date: 05/27/08 Archive Date: 06/09/08
DOCKET NO. 03-20 909 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Reno, Nevada
THE ISSUE
Entitlement to an increased evaluation for a left knee
disability, evaluated as 10 percent disabling since July 10,
2002, and evaluated with two separate 10 percent ratings
since November 2, 2007.
REPRESENTATION
Appellant represented by: AMVETS
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
S. D. Regan, Counsel
INTRODUCTION
The veteran had active service from November 1971 to December
1974.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a January 2003 RO rating decision that
increased the evaluation for the veteran's service-connected
left knee disability (postoperative residuals of a left knee
medial meniscectomy) from noncompensable to 10 percent,
effective July 10, 2002. In November 2004, the veteran
testified at a Board videoconference hearing. The Board
remanded this appeal for further development in May 2005 and
again in May 2007.
A January 2008 RO decision continued a 10 percent evaluation
for the veteran's service-connected left knee disability (re-
characterized as postoperative of a left knee medial
meniscectomy with slight instability) and granted service
connection and a separate 10 percent evaluation for
degenerative arthritis of the left knee, effective November
2, 2007. Since that grant does not represent a total grant
of benefits sought on appeal, the claim for increase remains
before the Board. AB v. Brown, 6 Vet. App. 35 (1993).
While this matter has been remanded twice in the past,
development requested on remand was not performed. The
claims must unfortunately be remanded once more. The appeal
is REMANDED to the RO via the Appeals Management Center
(AMC), in Washington, DC. VA will notify the appellant if
further action is required.
REMAND
The Board finds that there is a further VA duty to assist the
veteran in developing evidence pertinent to his claim.
38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007).
This case was previously remanded by the Board in May 2007,
partly to undertake appropriate development to obtain any
pertinent evidence identified, but not yet provided by the
veteran. The Board specifically noted that records relating
to recent surgical treatment involving the veteran's left
knee should be obtained. The Board indicated that if the AMC
(or the RO) was unable to obtain any such evidence, it should
so inform the veteran and his representative and request that
they provide the outstanding evidence. It does not appear
that any attempt was made to obtain records of the reported
surgery, as requested in the 2007 Board remand. The matter
must be returned for such action. See Stegall v. West, 11
Vet. App. 268 (1998).
The Board notes that a December 2006 report from the
Universal Underwriters Life Insurance Company indicated that
the veteran reported that he was still being treated for his
left knee disability and that he was unable to work. The
report also specifically noted that the veteran was currently
scheduled for surgery on his left knee. The surgery was
described as left knee reconstruction surgery. The report
related diagnoses of internal derangement of the knee and
degenerative joint disease of the knee.
In a June 2007 letter, the AMC requested that the veteran
report any VA treatment he had received and that he submit
releases for any non-VA doctor that had treated him for his
claimed condition. The veteran apparently did not respond to
the June 2007 letter.
A November 2007 VA orthopedic examination report noted that
the veteran reported that he was currently receiving trigger-
point injections at the Las Vegas, Nevada VA Medical Center.
The Board notes that it is unclear from the examination
report whether the veteran underwent any additional surgery
on his left knee as indicated by the December 2006 report
from Universal Underwriters Life Insurance Company. The
Board observes that the most recent VA treatment reports of
record are dated in November 2006.
The Board notes that there has been no specific attempt to
obtain any of the veteran's treatment records subsequent to
November 2006. The Board observes that the AMC also did not
inform the veteran that it was unable to obtain any such
additional evidence. As discussed above, the veteran
specifically submitted a December 2006 report from Universal
Underwriters Life Insurance Company which indicated that he
was scheduled for surgery for his left knee. He also
reported that he was currently receiving treatment at the Las
Vegas, Nevada VA Medical Center at the time of the November
2007 VA orthopedic examination. Thus, the case must again be
remanded to obtain the any additional records of private and
VA medical treatment subsequent to November 2006. See
Stegall v. West, 11 Vet. App. 268 (1998); see also Bell v.
Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in
constructive possession of the agency, and must be obtained
if the material could be determinative of the claim).
Additionally, the Board finds that the requirements of VA's
duty to notify and assist the claimant have not been met as
to these claims. 38 U.S.C.A. §§ 5103, 5103a;
38 C.F.R. § 3.159. The notice requirements of the Veterans
Claims Assistance Act of 2000 (VCAA) require VA to notify the
veteran of what information or evidence is necessary to
substantiate his claims; what subset of the necessary
information or evidence, if any, the claimant is to provide;
what subset of the necessary information or evidence, if any,
the VA will attempt to obtain; and a general notification
that the claimant may submit any other evidence he has in his
possession that may be relevant to the claim(s). Sanders v.
Nicholson, 487 F.3d 881 (Fed. Cir. 2007).
Recently, the Court held in Vazquez-Flores v. Peak, No. 05-
0355 (U.S. Vet. App. January 30, 2008), that for a claim for
increased compensation, section § 5103(a) requires, at a
minimum, that the Secretary notify the claimant that, to
substantiate a claim, the claimant must provide, or ask the
Secretary to obtain, medical or lay evidence demonstrating a
worsening or increase in severity of the disability and the
effect that worsening has on the claimant's employment and
daily life. Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet.
App. January 30, 2008). Further, under Vazquez, if the
Diagnostic Code under which the claimant is rated contains
criteria necessary for entitlement to a higher disability
rating that would not be satisfied by the claimant
demonstrating a noticeable worsening or increase in severity
of the disability and the effect that worsening has on the
claimant's employment and daily life (such as a specific
measurement or test result), the Secretary must provide at
least general notice of that requirement to the claimant.
Additionally, the claimant must be notified that, should an
increase in disability be found, a disability rating will be
determined by applying relevant Diagnostic Codes, which
typically provide for a range in severity of a particular
disability from noncompensable to as much as 100 percent
(depending on the disability involved), based on the nature
of the symptoms of the condition for which disability
compensation is being sought, their severity and duration,
and their impact upon employment and daily life.
As with proper notice for an initial disability rating and
consistent with the statutory and regulatory history, the
notice must also provide examples of the types of medical and
lay evidence that the claimant may submit (or ask the
Secretary to obtain) that are relevant to establishing
entitlement to increased compensation-e.g., competent lay
statements describing symptoms, medical and hospitalization
records, medical statements, employer statements, job
application rejections, and any other evidence showing an
increase in the disability or exceptional circumstances
relating to the disability. Vazquez-Flores, slip op. at 5-6.
Here, a review of the claims folder shows that sufficient
notice has not been sent to the veteran as to this issue.
The RO provided the veteran with a VCAA notice letters in
July 2004, October 2005, and June 2007. The notice letters
did not specifically notify the veteran that he should
provide evidence of the effect that worsening disabilities
had on his employment and daily life (such as a specific
measure or test). The letters also did not notify the
veteran that should an increase in disability be found, a
disability rating will be determined by applying relevant
Diagnostic Codes, which typically provide for a range in
severity of a particular disability from noncompensable to as
much as 100 percent (depending on the disability involved),
based on the nature of the of the symptoms of the condition
for which the disability compensation is being sought,
including their severity and duration, and their impact on
employment and daily life. Thus, on remand the RO should
provide corrective VCAA notice.
Accordingly, the case is REMANDED for the following:
1. The RO should provide the veteran
with VCAA notice that is compliant with
the requirements of Vazquez-Flores v.
Peak, No. 05-0355 (U.S. Vet. App. Jan.
30, 2008). Specifically, the notice
should advise the veteran that to
substantiate the claim for entitlement to
an increased evaluation for a left knee
disability, evaluated as 10 percent
disabling since July 10, 2002, and with
two separate 10 percent evaluations since
November 2, 2007, he must provide, or ask
VA to obtain, medical or lay evidence
demonstrating a worsening, or increased
severity, of the disability and the
effect that worsening has on his
employment and daily life. The veteran
should also be afforded a copy of the
applicable criteria needed for increased
(higher) ratings under the applicable
Diagnostic Codes for rating the service-
connected disabilities on appeal.
Also advise the veteran that if an
increase in disability is found, a
disability rating will be determined by
applying relevant Diagnostic Codes, which
typically provide for a range in severity
of a particular disability from 0 percent
to as much as 100 percent (depending on
the disability involved), based on the
nature of the symptoms of the condition
for which disability compensation is
being sought, their severity and
duration, and their impact upon
employment and daily life.
In addition, provide examples of the
types of medical and lay evidence that
the veteran may submit (or ask the
Secretary to obtain) that are relevant to
establishing entitlement to increased
compensation-e.g., competent lay
statements describing symptoms, medical
and hospitalization records, medical
statements, employer statements, job
application rejections, and any other
evidence showing an increase in the
disability or exceptional circumstances
relating to the disability.
2. Obtain copies of the veteran's VA
medical records, which are not already in
the claims folder, concerning his claimed
left knee problems, and dated since
November 2006, from the Las Vegas, Nevada
VA Medical Center.
3. Obtain copies of any outstanding
records of medical treatment reportedly
received by the veteran for his left knee
disability, if available. Specifically
noted in this regard are records of
treatment dated from November 2006 to the
present from the Universal Underwriters
Life Insurance Company or any other
private provider identified by the
veteran. If the AMC (or RO) is unable to
obtain any such evidence, it should so
inform the veteran and his representative
and request them to provide the
outstanding evidence.
4. Ask the veteran to identify all other
medical providers who have treated him
for left knee problems since November
2006. After receiving this information
and any necessary releases, contact the
named medical providers and obtain copies
of the related medical records which are
not already in the claims folder.
5. Thereafter, readjudicate the claim for
entitlement to an increased evaluation for
a left knee disability, evaluated as 10
percent disabling since July 10, 2002, and
with two separate 10 percent evaluations
since November 2, 2007. If any benefit
sought on appeal remains denied, issue a
supplemental statement of the case to the
veteran and his representative, and
provide an opportunity to respond before
the case is returned to the Board.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
_________________________________________________
DENNIS F. CHIAPPETTA
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2007).